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Defenses to Copyright Infringement

There are a number of defenses you can raise to prove your innocence. Even if you have intruded on a copyright owner's exclusive rights, your use may not be actual infringement.

When Do I Not Need Permission to Use Someone's Copyrighted Work?

Under certain circumstances, the Fair Use defense allows people to use copyrighted material without the copyright owner's permission. However, in determining whether your work is fair use, you have to consider several factors:

The purpose and character of your work - If your work transforms the original work into something completely new (such as using gum wrappers to make a purse) it is more likely to be considered fair use. On the other hand, if your work just copies the original work (such as a movie adaptation of a book), it is less likely to be considered fair use.

The nature of the copyrighted work - If the original work is very creative and original, it may be harder for you to use the fair use defense.

The amount and quality of the material used - If you take a substantial amount of material from the copyrighted work, or if you take material that is very important to the copyrighted work, it will be harder for you to prove fair use.

The effect on the market for the original work - Copying is more likely to be fair use if it does not harm the market for the original work.

What Are Some of the Other Defenses Available to Me?

Some of the other common defenses to copyright infringement are:

Independent creation - If you created your work without any knowledge of the copyrighted work, you have not infringed on the copyright because you didn't actually copy the original. In order to prove this, you generally must prove that there was no reasonable way for you to have been aware of the copyrighted work prior to the creation of your own work.

First sale - The owner of a lawfully made copy of a copyrighted work has the right to sell or otherwise dispose of it. He may also display his copy of the work to the public. Therefore, if you buy a painting, you can sell it to your friend or display it at a museum without infringing on the copyright owner's exclusive rights to distribution and display.

Violation of the statute of limitations - If the copyright owner waits too long to bring a suit against you, he may not have a valid suit at all.

If you had no reason to believe that the original work was protected by copyright, or if you thought that your use was fair, you may be considered to be an innocent infringer. Innocent infringers still have to stop their infringing behavior and pay the copyright owner for the commercial value of their use, but they typically do not have to pay damages to the copyright owner.

How Can a Lawyer Help Me?

A knowledgeable intellectual property lawyer will be able to explain what defenses are available to you and advise you accordingly. If you are sued in a court, an intellectual property lawyer can help defend you.